Obergefell v. Hodges’ invocation of liberty and due process, instead of substantive equality

The release today of the United States Supreme Court’s decision in Obergefell v. Hodgeswill today be debated by popular pundits, and in the days and years to come, studied by legal scholars and school children. Beyond the debate among American conservatives and liberals, the decision of a sharply divided court continues a philosophical debate as old as the American Constitution itself. What is “liberty” and can the state deprive its citizens of it without due process?

The dissenting opinion warned us that the interpretation of liberty in the Due Process provisions of the U.S. 14th Amendment to encompass the right to same-sex marriage amounts to judicial activism or usurpation of the legislative function. With an Obama administration whose sentiments are in accord with the majority, there will be no Marbury v. Madison standoff between two branches of government.

The majority, however, have adopted a historical approach and have tapped into the concept of liberty that has remained the revolutionary undercurrent of the American federal nation state. A literal reading of the Due Process clause appears, on the face of it, a provision akin to the security of person provision in s. 7 of the Canadian Charter of Rights and Freedoms. In the American context, however, liberty is a concept of the citizen’s broad relationship with government for the people and of the people. Contrary to the minority judges’ view, this model of democratic government was intended to create a zone of freedom in the same way that the original colonists cleared forests to establish farms and plantations. The revolutionary backdrop to this was, of course, the desire of American revolutionaries never to be deprived of liberty and property without observance of fundamental norms. This is indeed the very concept of liberty and due process that one invokes by saying the words, “Tea Party.” This concept of liberty extended beyond freedom from arbitrary detention or penalty and included a check on the legislative arm of the state, for example against passing unreasonable taxation laws.

Due process, therefore, protects liberty because of the concomitant requirement that everyone is equally entitled to it. In this regard, the court in Obergefell has approached same-sex marriage differently than the Canadian courts. Here, the matter was decided as a matter of equality entitlement. In the United States, the Supreme Court’s majority considered it a matter of due process and the equal right to the freedom to marry. Due process, in terms of a guarantee of liberty, is on these terms a positive obligation of the state to provide the legal institutions necessary for people to live as they choose. Despite an opinion of the minority that seeks a retreat into a “small court” shell, the majority opinion under the pen of Justice Kennedy (the court’s ‘swing vote’) is a masterstroke of legal philosophy and a triumph of American liberty.